Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

Nearly eight months ago, I asked the question: Will the Americans with Disabilities Act Be Amended?  

At that point, I indicated that an ADA Restoration Act Bill of 2007 was not yet a "hot topic" but as election season heated up, we could see some action on some proposed amendments.  There have been some followup posts both in January and again earlier this month.

Now, the answer my prior question, I think the answer is likely "yes". 

Within the last few weeks, a compromise bill (now titled the ADA Amendments Act of 2008) has been fashioned and on Wednesday, it passed the U.S. House of Representatives overwhelmingly (402-17).   All Connecticut representatives voted in favor of it.   The bill (H.R. 3195), can be downloaded here,  

The Workplace Horizons blog and the Ohio Employer's Law Blog have some initial feedback and reaction to the bill, as well as Disability Law 2.0. The New York Times had this mainstream report.  For additional blogs from advocacy groups, see the American Association of People with Disabilities blog and the NAM (National Association of Manufacturers) blog. 

So, what would the ADA Amendment Acts do?

On its face, it strives to overturn various U.S. Supreme Court cases that the bill's sponsors believe narrowed the ADA too much.  Thus, the bill broadens definitions of various terms.  For example, it defines the phrase "substantially limits" to mean "materially restricts".  It also features some aspects seen as "for employers" such as limiting "regarded as" claims as impairs that last or are expected to last for more than six months.

As Jon Hyman notes:

The biggest changes, however, come to the definition of "disability" itself. In Sutton v. United Airlines, the Supreme Court held that whether an impairment substantially limits a major life activity is to be determined with reference to the effects of mitigating measures on the impairment. For example, a diabetic who has the condition under control with insulin might not meet the definition of "disability." These amendments expressly reverse that ruling:

• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
• The determination of whether an impairment substantially limits a major life activity is to be made without regard to the ameliorative effects of mitigating measures, such as medications, equipment, assistive technology, auxiliary devices, learned behavioral, or adaptive neurological modifications.
• Eyeglasses or contact lenses, however, can still be considered in determining whether an impairment substantially limits a major life activity.

There is no date yet for a vote in the Senate.  As the term continues and it becomes more likely that the bill is going to pass, I'll provide an update with additional details about the proposed provisions.

For now, employers should stay tuned for future legislative developments and take an opportunity now to understand the scope of the ADA. If it is passed, the bill may make it more difficult for employers to get "summary judgment" in ADA cases and is sure to raise a whole new set of issues related to the definition of "disability".  For employers in Connecticut, ADA amendments could be particularly tricky because of the risk that courts in Connecticut (which tend to follow the ADA lead) will use the amendments to interpret our state disability discrimination law, which has developed somewhat differently.

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It's been over four months since my last update on the ADA Restoration Act.

Now word comes that a possible compromise bill is in the works that could make the first substantial legislative changes to the ADA in over 15 years.  Human Resource Executive Online has the latest details (H/T Workplace Horizons):

According to the report, the proposed modified bill:

• States that mitigating measures should not be considered when determining whether an impairment materially restricts an individual's major life activity, including medical devices, assistive technology, behavior adaptations, reasonable accommodation or auxiliary aids. This would reverse the ruling in the Sutton vs. United Airlines decision by the U.S. Supreme Court that "mitigating measures" should be taken into account when determining whether a plaintiff is disabled.
• Excludes minor impairments and impairments with an actual or expected duration of six months or less as disabilities.
• States that employers would not need to provide reasonable accommodations to employees they regard as disabled.
• Includes a section with examples of major life activities such as caring for oneself, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. The high court, in Toyota vs. Williams, ruled a disability must "substantially limit [an individual's] daily life activities," not just abilities at work. The case involved the inability of an assembly worker with carpal tunnel syndrome to do her job.
  

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Several months ago, I posted on legislation pending before Congress called the ADA Restoration Act of 2007.  Today seems a particularly apt time for an update.

The U.S. House's Committee on Education and Labor is holding a hearing today on H.R. 3195.  The hearing is being webcast on its website here.  Several witnesses are slated to testify. 

Both SHRM and the American Association of People with Disabilities are portraying this time period as critical for consideration of the bill.  A vote on the bill could come up to the house, according to these advocates, sometime in February.  Whether the bill will pass appears up in the air as the bill lacks a sufficient number of co-sponsors to assure its passage in both houses.

George Lenard of the Employment Blawg shared his view on the Act as well.  It's worth checking out in full.  Here's a portion:

There have been some cases in which the definition of “disability” has been construed too narrowly, preventing individuals with quite substantial impairments from having their day in court.

But the definition as it now stands is a sound one, and the Supreme Court cases were correctly decided under this definition.

The problem has largely been one of bad lawyering. It has taken too long for lawyers representing plaintiffs in disability cases to learn that the threshold issue of meeting the definition of “disability” is absolutely critical, and requires extensive factual development, often with multiple expert witnesses.

SHRM’s position is excessively alarmist — although I agree the proposed law is unnecessary and I oppose it without qualification.

As I stated before, I'm not sure I agree with the use of the term "restoration".  Indeed, it's a dangerous road to go down by attempting look back to where we were 17 years ago in employment law and say the law isn't what we intended it to be.  The law -- as with all laws -- has evolved over time as "real-life" cases get interpreted. For example, does someone with MRSA qualify as a disability? Since MRSA wasn't even an issue 15 years ago, the law has to be interpreted to address this question. 

I would rather the backers of the bill engage in an intellectually honest debate of whether amendments to the ADA should be made rather than claim that they are merely "restoring" it.  The use of that type of loaded terminology (see, for example, "No Child Left Behind") does not add to the debate of whether the proposed amendments are a good or bad idea.

Indeed, an interesting article by The New York Times last week also asked whether some disabled people might actually be worse off with the passage of the ADA.  

Lastly, for those who are interested in more on the subject, the ReunifyGally Blog has been constant in its updates.

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For over 15 years, the Americans with Disabilities Act has been the subject of lots of hand-wringing inside human resources departments across the country. Phrases such as "reasonable accommodation" and "undue hardship" took on new meanings.  And of course, the Act spawned lots of litigation to determine the parameters of the act.

Now, a Senate Committee is looking into making tweaks to the ADA or, depending on your views, wholesale changes through a new bill making the rounds. The bill, entitled in Orwellian doublespeak as "Americans with Disabilities Act Restoration Act of 2007", would amend the Americans with Disabilities Act of 1990 to add definitions and rules of construction permitting greater opportunities for recovery than exist under current judicial interpretations allow. The Committee heard testimony last week from several individuals.

The Workplace Horizons blog has a good summary of the exact changes and has been tracking this bill as it makes its way through Congress. 

The Bill was introduced over the summer by Senator Tom Harkin who, in his internet saavy skills, posted this video to YouTube describing the bill.

Among those who testified was Dick Thornburgh, currently counsel to the national law firm of Kirkpatrick & Lockhart Preston Gates Ellis LLP, resident in their Washington, D.C. office. He is the former Attorney General of the United States and the former governor of Pennsylvania.  He actually spoke on the subject many months ago at a visit to a university -- which posted excerpts from his speech there. 

So, where does this bill go from here? On a bus tour, naturally.  Indeed, the bus visited Connecticut several weeks ago in an event attended by leaders of both political parties. But the bill still has a ways to go.

There are many blogs and posts tracking or commenting on this bill, including the American Association of People with Disabilities and Reunify Gally. 

For employers, we often track court cases without realizing that legislation can have just as dramatic an impact.  Will this bill a "hot topic" next year? It hasn't taken off yet, but with the election cycle in full swing, it remains to be seen whether this bill will catch on.

(Note: Links have been updated per comments.)

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